Right to clean and healthy environment under the Constitution of India

 

“It is our collective and individual responsibility to preserve and tend to the world in which we all live.”     

-Dalai Lama

The Right to a healthy environment is the core of the Right to life. It is in many ways connected to the Right to clean drinking water and the right to health. It also prevents humans from damaging flora and fauna. This right has been recognized and advocated by the United Nations and was accepted as a global human right at Stockholm Conference also known as Magna Carta of human environment. It provides a much-required basis for environmental protection to environmental activists. Also, this conference linked environmental protection with sustainable development. The Right to a clean environment has been adopted by the Indian Constitution under Article 21. The will of the Constitution to provide a clean and safe living environment is expressed in many Acts and through many landmark cases discussed in this article. 

Constitutional Right of Clean and Healthy Environment

The Constitution of India, 1950 did not include provisions related to the protection and preservation of the environment. However, under Article 21 (Right to Life) of the Constitution of India, the right to a clean and healthy environment is incorporated as a fundamental right. It states that “No person shall be deprived of his life or personal liberty except according to procedures established by law.” Articles 48A and 51 A (g) were introduced under the Constitution (Forty-second Amendment) Act, 1976 which conferred constitutional status to environmental protection. 

• Article 48A states “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.” 
• Article 51A(g), it is the duty of every citizen to preserve and protect the environment. It states “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.” 
• Article 32 and Article 226 of the Constitution of India allow any person to move to the Supreme Court whenever there is any violation of fundamental rights through Public Interest Litigation.  

Along with this, there are certain provisions under Indian Penal Code that identify public nuisance-related crimes. An appropriate definition of Public Nuisance is mentioned under Section 268 of IPC. It states “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.”

Section 277 of the IPC determines that any person who pollutes the water of a public reservoir is punishable with imprisonment which may extend to three months or with a fine extending to five hundred rupees or both. 

Section 278 of the IPC states any person who pollutes the atmosphere that negatively affects the health of people is punishable with a fine which may extend to five hundred rupees.

Section 290 of the IPC states that “Whoever commits a public nuisance in any case not otherwise punishable by this code, shall be punished with a fine which may extend to two hundred rupees.” 

Environmental Protection Laws in India

Wildlife (Protection) Act, 1972

In order to protect and safeguard wildlife, the Indian Parliament enacted the Wildlife (Protection) Act. It provides protection to wild animals, birds, and plant species so as to ensure ecological and environmental security. 

Water (Prevention and Control of Pollution) Act, 1974

In 1974, this Act was introduced to control and prevent water pollution by promoting the cleanliness of streams and rivers. Also, it ensures to maintain and restore the wholesomeness of water for the establishment. The Water (Prevention and Control of Pollution) Act prohibits the discharge of effluents into water bodies so as to protect marine as well as human life. Apart from this, the act allows the establishment of agencies such as the Central Pollution Control Board (CPCB) and the State Pollution Control Board (SPCB), and powers were given to them so that appropriate actions could be taken to prevent water pollution. 

Air (Prevention and Control of Pollution) Act, 1981

The primary objective of the Air (Prevention and Control of Pollution) Act is to protect and prevent the environment from the harmful effects of air pollution. As per Section 2(b) of this act, air pollution is defined as “the presence in the atmosphere of any air pollutant” The air pollutant is also defined under Section 2(a), “any solid, liquid or gaseous substance present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.”  The responsibility of implementing the provisions of this Act is given to the SPCB and CPCB. Also, the act empowers the state government to declare any area as an air pollution control area within the state. 

The Environment (Protection) Act, 1986

The primary motive of the Environment (Protection) Act is to provide for the protection and improvement of the environment. The Act empowers the Centre to take appropriate measures to prevent and control the environment by managing hazardous waste, regulating the location of industries, and protecting public health and welfare. This Act is an umbrella legislation that is designed to provide a framework so as to initiate the coordination of State and Central authorities established in the Water Act of 1974. 

The National Green Tribunal Act, 2010

The National Green Tribunal was established under the National Green Tribunal Act of 2010, to quickly resolve cases related to environmental preservation and protection as well as for the conservation of natural resources. This Act is enacted under Article 21 of the Constitution of India which explains the right to live in a clean environment and the right to a healthy environment. One of the objectives of NGT is to give compensation and relief for any damage caused to an individual, group, and property. There are major bodies in the NGT including the Chairperson, the Expert Members, and the Judicial Members. There should be a minimum of 10 and a maximum of 20 Expert as well as Judicial members. NGT resolves various civil cases under the laws related to the environment such as the Water (Prevention and Control of Pollution) Act of 1974, the Air (Prevention and Control of Pollution) Act of 1981, the Forest Act (Conservation) of 1980, the Public Liability Insurance Act of 1991, Environment (Protection) Act of 1986, and the Biological Diversity Act of 2002.

Role of Judiciary 

In the protection of the environment, the judiciary plays a very important role. The landmark judgments from the past few decades are the proof that judiciary played a significant role in interpreting the Fundamental rights of an individual. Along with this, the introduction of Public Interest Litigation helped those who were not able to approach the Supreme Court for protecting their rights. The concept of PIL encouraged various individuals, Non-government Organizations, and other related organizations to approach the court for helping those who cannot afford Court fees. In this way, various cases were listed and judgments were delivered in association with environmental protection and sustainability. There are various landmark judgments that highlight the role of the judiciary in environmental protection. Below are two of the most important landmark judgments by the Supreme Court regarding the protection and preservation of the environment.

Indian Council for Enviro-Legal Action v. UOI (1996)

Facts of the case: Bichhri is a small village in the Udaipur district of Rajasthan. Its environmental woes began when Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum and Single Super Phosphate. Another sister concern, of Hindustan Agro Chemicals i.e  Silver Chemicals (Respondents No. 5), commenced production of 'H' acid in a plant located within the same complex– Its manufacture gives rise to enormous quantities of highly toxic effluents, which poisons the earth, the water and everything that comes in contact with it. Water became unfit for cattle to drink and for irrigating the land. The soil became polluted and unfit for cultivation, which was the mainstay of the villagers. The petitioner attached technical data and other material was also produced supporting the claims in the petition.

Supreme Court Held: The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinizing their establishment and functioning more rigorously. No distinction should be made on this behalf between a large-scale industry and a small-scale industry or for that matter between a large-scale industry and a medium-scale industry.

MC Mehta v. Kamal Nath & Ors

Facts of the case: Supreme Court took notice of news that was published in the “Indian Express” under the caption - “Kamal Nath dares the mighty Beas to keep his dreams afloat”. The problem was with ‘Span Club’ an aspiring project on the banks of Beas. The club represents Kamal Nath’s dream of having a house on the bank of the Beas in the shadow the bank of the Beas in the shadow of the snow-capped Zanskar ranges. The club was resurrected after encroaching 27.12 bighas of land, including substantial forest land which was later leased out to the company when Mr. Kamal Nath was Minister of Environment and Forests. The main contention was that the course of the river was being diverted to save the motel from future floods. The inspecting team in its report stated Span Motels did not engage any Flood Control Expert and work was not properly done which could result in future floods and landslides 

Supreme Court Held: Supreme Court ruled that the public sees no reason to prevent the public trust doctrine from expanding in order to include all ecosystems operating in our natural resources. Resources meant for public use cannot and should not be converted into private ownership. “The Polluter Pays principle has been held to be a sound principle by this Court in Indian Council for Environ-Legal Action v. Union of India.” One who pollutes the environment must pay to reverse the damage caused by his acts. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.

Conclusion

The onus of keeping our environment clean and healthy is not just on the Government but it is a mutual responsibility of all the citizens of the country. To conclude, it can be determined that a clean and healthy environment is an important human right that is available to every citizen. Despite this, the degradation of the environment due to the insensitivity of people towards nature has consequently affected human health. 

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